Expect a legal battle over the proposed D.C. Marriage Initiative of 2009

On June 15th, the Board of Elections and Ethics for the District of Columbia issued a ruling on a proposed referendum that would have let District voters decide whether to repeal the Jury and Marriage Amendment Act of 2009 (JMAA). The JMA confers official District recognition of out-of-state, same-sex marriages. The Board ruled that the referendum could not qualify for the ballot because it violated the District's Human Rights. The JMAA

effectively adds discrimination against same-sex couples who have entered into valid marriages in other jurisdictions to the list of acts of discrimination prohibited under the [Human Rights Act] ... [T]he Referendum’s Proposers would, in contravention of the [Human Rights Act], strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere.

Two days later, the Alliance Defense Fund (ADF) filed a lawsuit on behalf of the referendum's proponents, who asked a Superior Court judge to order that the referendum be placed on the ballot. In July, the judge dismissed the lawsuit, and the JMAA took effect.

By September, Council Member David Catania was expected to introduce marriage-equality legislation. On September 1st, proponents of the JMAA referendum filed a proposed initiative with the Board, the D.C. Marriage Initiative of 2009, which would amend the District code to read:

Only marriage between a man and a woman is recognized or valid in the District of Columbia.

The filing identifies ADF as counsel for the proponents.

At its September 9th meeting, the Board acknowledged receipt of the proposed initiative, and appeared to defer a hearing on it until late October. It's unclear whether introduction of the D.C. Religious Freedom and Civil Marriage Equality Amendment Act of 2009 will expedite the Board's review of the Marriage Initiative.

I had thought dismissal of their lawsuit in July over the JMA referendum would deter Marriage Initiatve proponents from testing whether their proposed Initiative violates the District's Human Rights Act. Now I find that I am wrong. Brian Brown, Executive Director of the National Organization for Marriage (NOM), yesterday told a local news host that the Initiative doesn't violate the Human Rights Act, apparently because a proposal of a law that the Human Rights Act might prohibit can't violate the Act until it is adopted. Coincidentally, NOM recently moved to the District. Brown says that District voters must not be disenfranchised with respect to an opportunity to vote on the Marriage Initiative.

Given the introduction of marriage-equality legislation, the Board will probably not find reason to delay a hearing on the proposed Initiative, and the Board will almost certainly rule that it violates the Human Rights Act. We can reasonably expect ADF to file another lawsuit to reverse the Board's action, perhaps just as voters in Maine and Washington go to the polls to decide referenda in those states on same-sex marriage and civil unions, respectively.